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6th Circuit Court: Code Is Speech 211

The Federal 6th Circuit Court of Appeals ruled on Junger v. Daley Tuesday, finding that source code is expressive speech. PeterD.Junger had sued in 1997 to allow posting of some crypto code on the Internet, on the grounds that it is expressive and not merely functional. The court found in his favor: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment." Read on for an excerpt from the ruling (or go read the whole thing yourself, lazy!).

See also the Wired article. And may I just say how delightful it is that the court compared source code to written music -- and to the works of JacksonPollack!

Excerpt from the court opinion:

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of permitted government regulation.

The Supreme Court has explained that "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. ... This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. ...

The Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. ... Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programers.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

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6th Circuit Court: Code Is Speech

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  • by Anonymous Coward
    So it's time to troll Slashdot. In case you haven't noticed, it's been a good time.

    There will always be trolls, as long as people keep taking themselves too seriously. Outside of the cold, hard concrete sequential world of C and UNIX type languages and operating systems, there are other kinds of fun to be had, and this is the realm of the troll.

    Some see open source as an art form [theatlantic.com], but trolling is an art of an even higher level. I, for one, find nothing more satisfying than reading a JonKatz tirade, see the pathetic souls show the least bit of interest of said rant, then to browse further down, where "moo fuckaz", "MEEPT", or "first post" lurk. With the exception of the /. poll, the trolls rule the discussion board. Whether OSS truly is an art form/ant farm or not, trolling is. At its lowest levels, it's the agitating comedy of a stand-up hack. At its finest, the masters of Dadaism itself would stand back and admire it.

    As trolling day comes to an end in CDT, I hope you have all enjoyed the production, and if not, you're the reason we're here. If you'd like to learn more about the trolls, or perhaps even join, you can visit our private thread [slashdot.org]. Thank you.

  • by Anonymous Coward
    Intelligent and creative thought are valid arguments. They are certainly not relegated to professionals. I, for one, would argue that most groundbreaking thought comes from outside the field, from different disciplines, aka from the so-called "odd man".

    As an MD/MPH student, I'm reminded of little DC meeting at GWU regarding TB and HIV. They had a "mix" of individuals there--doctors, lawyers, residents, students. Where did most of the "good ideas" come from? The students.

    Degrees mean squat. They're just there for the other idiots that need some documentation that you can do the job.
  • by Anonymous Coward
    if (any_more_assholes_post_useless_crap_as_code)
    go_fuck_yourself(twofisted);
  • by Anonymous Coward
    "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. ... This protection is not reserved for purely expressive communication.

    Does this include grits dumping? What about flame baiting? Trolling? Posts about Emmett's wife, Star? Posts about how boring Timothy is? Any post by ubertroll? A post that asks you to locate and shut your pie hole?

    I thought so. Happy Troll day to each and all. Enjoy your freedom of expression.

  • by Anonymous Coward
    is run by a bunch of reefer smoking hippies. This ruling is ludicrous. I don't understand how the President can allow this runaway court to get away with their crimes against the US. Clearly, code has to be regulated. If it isn't regulated then all hell will break loose. Please write your congressman/senator to complain.
  • by Anonymous Coward
    Ok, it seems that writing and distributing code is legal, as long as you don't run it, right?

    Well, as one of the few programmers that still reads /. I feel I must point out a problem: Debugging.

    Every program has bugs when first written. If you release a nearly bug-free source code to a program that can't be run, then prosecution can argue that you debugged it. This involved running it, etc.

    This doesn't apply to poetry or music, because playing the music _is_ the form of expression. For source code, writing is the expression. Running is not.

    So you have to either release buggy code, or be prepared to show that you debugged it by code reviews alone.

    IANAL, but if I were, I'd be suing everybody who gives legal advice without saying IANAL
  • Actually...

    The DMCA is an *american* law. I'm still not clean how a bunch of Norwegians/Canadians can be prosecuted under this particular law.

    All in all, I'm very exited about this decision. I feel very vindicated.
  • As I recall, This is merely upholding a previous ruling that said pretty much the same thing, but the government appealed the case. So does this mean that law schools are actually teaching their students useful information? Too soon to tell.
  • I would say the reason such opinions are read are because the legal field is, above all, an ongoing conversation among rational people.

    Just because one is not a lawyer does not mean one cannot have a rational argument about a legal issue. To assume otherwise is just as preposterous as to assume that only programmers can have an opinion on whether a piece of software is of high quality or not.

    The more detailed and low-level the argument, the more professional expertise becomes an issue. Hence "IANAL" becomes a necessary disclaimer.

  • This doesn't apply to poetry or music, because playing the music _is_ the form of expression. For source code, writing is the expression. Running is not.
    ...
    IANAL, but if I were, I'd be suing everybody who gives legal advice without saying IANAL

    You shouldn't have to say that you're not a lawyer. You're entitled to free speech, remember? And any idiot who takes your text for gospel is stupid enough to be punished for it, OK?

    If people (=you) are afraid of saying things because you could be sued for it, then your country doesn't support free speech. It's that simple.

    --Bud

  • at any rate this is probably the most important legal decision that will be made in the next decade and i shouldn't be making jokes about it..

    The fact that this is one of the more important legal decisions of the next decade is exactly WHY you should be making jokes about it. Refusing to take the old crap seriously is the first step toward eliminating it.

    -Mars

  • I'd wondered what would happen if a Microsoft were to dispatch an army of lawyers to see if the GPL could be ruled as 'invalid' in a court of law. This latest creates more precedent for treating copyleft as a First Amendment issue, not a property rights/economic issue. From what I've read, even the most conservative Supreme Court judges regard freedom of speech as sacred, when it comes down to "which principle prevails." So, I think we can sleep a little easier at night now.
  • If the DMCA is pitted against the constitution(first amendment)it will lose! :)

    This is a much stonger case against the DMCA than "Free Use" ever was!

    As the Klingons say "This is a Good Day to Die!"

    Kapla

  • SHOW ME THE MONEY!!!

    AC, you are my AMBASSADOR of Quan!

  • I'm not really worried about degrees, and it's not so much about IANAL or law advice, it's about the clueless speculation. If you're somebody who's honestly interested in law, and has actually studied it, then your opinion isn't clueless.

    What I don't like is when I finish reading a post, and think to myself, "He made all that shit up!".
  • "What so fucking cool about not talking about legal matters? You think the Declaration of Independence and the Constitution were a breeze, unanimously agreed upon documents? "

    Nothing's cool about not talking about legal matters. It's just that IANAL, so I don't try to act like one. And no, I seriously doubt the constitution/Declaration was a breeze, but then again, the people that wrote those knew what they were doing, and weren't just doing what they did to appear knowledgeable.

    If you consider the fact that I don't enjoy reading legal "facts" that were obviously made up by the poster "elitism", then call me an elitist.

  • "...let's take a look at the trolls. They've given us all kinds of innovations ..."
    Microsoft is always bragging about *their* innovation, too. :)
  • Seeing as how the actual Constitution (the piece of paper under glass somewhere in D.C.) is not your personal property, I don't think anything in it could be used to defend your actions if you actually tried to burn it. If you've got a copy printed on paper that you actually own, then feel free to use it to get those briquettes glowing.
  • This not a troll or a flamebait. IOW, I want to learn more. I have read numerous Federal Circuit Court rulings, several Federal District Court of Appeals rulings, but am not aware of any specific Supreme Court rulings on this matter. The subject matter is regard to computer related technology; e.g., encryption, DeCSS, reverse engineering (wrt to software), etc... Has the Supreme Court ruled on a case directly related to high tech computer stuff involving software issues? But the main point, are there any web links that you know of that you can point me to?

    I have an interest in these things.

  • IANAL, but have have a lot of friends who are real lawyers. Some of them have studied and practiced IP law, some have been in relatively high positions in government agencies that oversee high-tech (e.g., FCC), some have been congressional staff members, ad nauseum... Guess where I live?

    IMHO, Signal11 comments and his IANAL disclaimer are appropriate in this case; I also thought that his comments were relatively insightful/interesting. However, your points are very, very good. We the denizens of /. talk about legal issues while we are usually not trained or really proficient in the legal aspects of what we talk about.

    However, why is this a one way street? I don't see the lawyers and judges that have oversight capabilities over technology issues saying, IANAG or IANAN. Guess what G or N stand for. I have talked to my friends about some the technology issues and their general response is that they don't matter at this time. At first I was somewhat PO until they explained that much of law is based on legal precedent.
    IMHO and IANAL, in high tech, there has not been enough pertinent cases to establish the rule of law. Furthermore, there has not been enough earlier landmark cases that can then be taught to young law students.

  • The only difference between The Anarchist's Cookbook and a virus, or between any book and any program, is that a book is software that runs in a brain and a program is software that runs in a CPU. It is not what ideas (or software) you have that matters, it is what you do with them.

    The difference between detonating a nuclear weapon and running a virus is this: you cannot safely detonate a nuclear weapon, but a virus can be executed and studied under controlled conditions.

    This plays into the patent issue, too. Software is not a machine, it is the idea of a machine. It just happens that thanks to computers, the idea becomes as good as a real machine. But that no more makes it a machine than a vivid masturbatory fantasy is sex with Laetitia Casta, no matter how many might wish it were otherwise.
  • "Secondly, there is the little matter of... da-dum... DMCA."

    Very true. The more I think of it, though, the more ammunition this seems to give to the anti-DMCA movement.

    The DMCA does not prohibit "anti-piracy" tools in order to prevent obscenity or breaches of national security -- it just prevents the circumvention of schemes used to protect media from being copied. (Or, apparently, viewed, if the scheme used to view might be used to copy, however small that possibility may be.)

    However, the publishers of programs that demonstrate how to circumvent copy protection are not, themselves, circumventing it. They are merely informing others of how the protection can be circumvented. As has been proven repeatedly, this is not even particularly biased speech -- it helps the securer to know how their mechanisms are being circumvented, just as it helps people circumvent them. Not much different from someone pointing out a big hole in a prison wall, IMO, or how a home security system might not be all that secure.

    (The DMCA would would still seem capable of preventing people from actually using this technology to circumvent protection, and since this still curtails a lot of fair use, the fundamental flaw is still there. Seems to pull a lot of teeth out of it, though.)

    Far more interesting, IMO, is its applications in cases like cphack, where the information revealed isn't even particularly useful to ostensible opponents of the technology -- that is, seeing an unencrypted site list from Cyber Patrol doesn't tell me how to get around Cyber Patrol's blocks if I'm running a blocked site. That would be like needing to encrypt my credit report because I might be able to change it -- I can't, and I am, in fact, given the explicit legal right to see it for purposes of oversight.

    (It does show consumers how little bearing Mattel's claims to them have on reality, and might make them opponents of Mattel's efforts to keep their site list secret, but that's another story. And it does let kids see the URL's of the sites they can't see -- OTOH, how, exactly, do you teach your child which words not to say in public?)

    phil

    P.S. -- The law of averages should make it clear that, on a site that only attracts a minority of lawyers as its audience, I am probably not a lawyer if I don't explicitly point it out. So I won't point it out, and anyone who thinks I am a lawyer is making an unreasonable assumption. :)

  • From the intercal page:

    "INTERCAL... Expressions that look like line
    noise. Control constracts that will make you gasp, make you laugh, and possibly make you hurl."

    Hummm.... Sounds like perl...

    *ducks*

    --

  • If you want to slate the man off then have the balls to say who you are.

    You can only speak for yourself in this, if anyone has a problem with this guy posting then they can say so themselves.

    For all I know you are posting this as an effort to direct bad PR from Mattel because you are in thier employ.
  • Whoa wait ... I mean what about ways to openly decrypt trusted encryption??? There's no real reason you'd need something like that unless you wanted to do bad things to the computer world.

    Actually, now that I work for an e-commerce company, I would like to be able to tell any customers that question our site's security that the encryption used to communicate between them and us has so far proven unbreakable.

    It's not so different than stress testing a program. You try out every little thing you possibly can to see if it will break. You have many people do this since thought processes differ as does experience.

    Digital Wokan, Tribal mage of the electronics age

  • i actually kind of find it funny the way everyone's spazzing about that line..
    seeing as the line wasn't actually serious to begin with.. -_-

    -mcc-baka
    http://drowned.cx/decss/
  • Patents cover machines and processes.

    Copyrights cover particular expressions.
    The two domains do not overlap.

    Why can't a machine be a particular expression?

    I think EFF's DES cracker machine is an example of one.


    ---
  • Posting != caring

    And caring about stuff is bad, right?

    You suck. That's probably why you call sorehands a cocksucker. You're a latent and can't get the subject off your mind.


    ---
  • Your deep, well thought out attack has wounded me deeply. Your wit is insurmountable.

    I hope you don't make me do it again. It fills me with pity to see you suffer so.


    ---
  • The only person considered competent to decide infringement is an IP lawyer.

    I think the judges generally make this call.

    What would happen is your guys would go to court and explain to the judge why what you're doing is different, and their guys would explain why it's too similar. The judge presumably pays attention to this and at the end decides who is correct.

    I fail to see how this process could be made any more effective (short of your seeming suggestion that it just be up to the second party to decide whether or not they're infringing)...
  • This is a major landmark decision. Not only for DeCSS, but for other recent cases too. I'm wondering how if anyone is going to bring this up in relation to the DeCSS hearing, and if the MPAA will still persist (though we all know the answer to that).
  • []$ gcc dork.c dork.c:1: `#include' expects "FILENAME" or

    dork.c:10: warning: return-type defaults to `int' dork.c: In function `main': dork.c:12: `return0' undeclared (first use in this function) dork.c:12: (Each undeclared identifier is reported only once dork.c:12: for each function it appears in.) dork.c:13: warning: control reaches end of non-void function

    etc....

  • Careful there, norculf - the ruling applied to code, not to comments!

    --
  • I suggest you take a look at Linux's source code. Or even funnier: QMail's source code. Some good programmers do hate comments.
  • "I would say the reason such opinions are read are because the legal field is, above all, an ongoing conversation among rational people"

    I can go for long periods of time at work (where I write software) or with my friends without talking about legal matters. Some think that the carrion is best left to the jackals.

    "Just because one is not a lawyer does not mean one cannot have a rational argument about a legal issue. To assume otherwise is just as preposterous as to assume that only programmers can have an opinion on whether a piece of software is of high quality or not."

    In terms of the new computer users, I wasn't referring to people who express opinions on matters of software quality, I was talking about people that feign knowledge about a given subject. It's OK for people to talk about opinions of experiences they've had. What annoys others is when people with no experience in the field they are talking about give advice and act as if they knew what they were talking about. There's a difference between "For what it's worth, I think that software package sucks because it crashes a lot" and the comment "That software package sucks, because it keeps forgetting to release dynamically allocated memory causing heap corruption and loss of stack pointers". One is an opinion, and the other is an opinion propped up by completely fabricated "reasons".

    How many times have you seen somebody post something on slashdot that said this-or-that WILL or WILL NOT happen, because of points X, Y, and Z? I've seen that a whole lot. But I have NEVER seen the justification for points X, Y, and Z when people talk about legal issues, and that's what annoys me.

    "The more detailed and low-level the argument, the more professional expertise becomes an issue. Hence "IANAL" becomes a necessary disclaimer. "

    I agree with this in spirit, but really, I feel that it should read "The more detailed and low-level the legal argument, the less likely it is to contain real, factual information".

  • One might as well question why people say, "with all due respect" just before saying words that are not the least bit respectful ;)

    because that's how much respect is due.

    Lea

  • Some programmers (who are not lawyers) study legal issues concerning free software intensively, and when they comment on legal issues they make every effort to be correct.

    It still makes sense from them to state IANAL, because when a lawyer gives legal advice, they can be held accountable for that advice. So much like a patient can sue a doctor for messing up a medical operation, the recipeint of legal advice can sue the lawyer if bad advice is given.

    So it's a sensible legal precaution. it's shorthand for something like "No person should rely on the contents of this comment without first obtaining advice from a qualified professional person. This comment is provided on the terms and understanding that I are not responsible for the results of any actions taken on the basis of information in this comment, nor for any error in or omission from this comment. I expressly disclaim all and any liability and responsibility to any person, whether a reader of this comment or not, in respect of anything, and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any part of the contents of this comment."
  • This really doesn't change much. The ruling simply confirms that code is speech, but that doesn't mean that it can't be regulated.

    What is interesting is that the Court adopted a slightly stricter test than has been "traditionally" required. This is the test used in Turner Broadcasting where the government not only has to prove a substantial government interest in regulating the non-speech expressive elements (the court never said that code was 100% speech), but has to demonstrate that there was evidence for the government to conclude that it was necessary to regulate the speech.

    So, this ruling may be used to persuade other courts that the government had to have a good reason to enact the DMCA if it regulates speech. It will help programmers and free speech advocates, but it is NOT a home run.

    Note: I have taken great liberties with the actual legal standards here, but this is all basically accurate.
  • You can write books about how to make bombs, kill people, or turn small nations into smoking holes in the ground*, but you can't actually do those things!

    So you can write a book on how to de-CSS DVDs, then...

    * Actually, the USA tried to do that with Viêt-Nàm 35 years ago...


    --

  • The idea that source code is free speech has always been obvious to me. Think about it. I can goto Amazon.com (if we're not boycotting them) and order books on how to build and atomic bomb or emp gun or assault rifle, how to break into computers and wreak havoc, and many other worse things I'm sure.

    Worse things, say, like looking at their JAVA source code for One-Click Shopping (tm)???


    --

  • A given ASM instruction name corresponds directly with a certain instruction in the compiled form of the the program. Since you can construct the original source from the compiled code, it could be argued that ASM binaries (or perhaps ALL binaries) are simply another format used in representing the concepts in source code.
  • Here is the quote you are referring to, from Supreme Court Justice Holmes, as given in Schenck v. United States (1919):

    "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."

    If you were to stand up in a crowded theatre today, and yell "fire", most likely the people around you would look at you like you were an idiot, then tell you to shut up.

    This analogy dates back to when theatres were firetraps, and a theatre fire could take hundreds of lives. Take for instance, the Iroquois Theater fire of December 30, 1903. During a matinee performance, a piece of scenery caught fire. The doors to the theatre were locked, and over 600 people were killed in approximately 15 minutes.

    Theatre fires were the airline crashes of the time. They killed hundreds of people at a time, and in many cases, when a fire became apparent, people were crushed to death in the stampede towards the exits.

    What Justice Holmes was saying was obvious to his contemporaries. You are not allowed to falsely create irrational panic in a situation where the panic is likely to lead to death. For instance, if you were to observe someone standing at the edge of a roof, peering over the edge, you would not be allowed to sneak up behind him, scream "LOOK OUT" in his ear, then claim first amendment protection for your actions when he jumped to his death.

    Note that Justice Holmes even qualified his statement by stating that a false cry of fire would not be protected speech. If there really was a fire, you would be completely justified in yelling "fire!"

    Now that theatres are basically safe places, with wide outward-opening doors, sprinker systems, fire-proof curtains, electric lights instead of white-hot carbon arcs, and safety film instead of explosive nitrate film, the analogy doesn't really mean much anymore. However, the quote lives on, and is regularly misapplied.

    Justice Holmes didn't mean that you aren't allowed to yell "fire" because it's annoying, he meant that you falsely use speech to cause panic, resulting in possible injury or death, then 1st amendment protection of free speech does not apply.

    Anyway, this common-sense interpretation of the first amendment has nothing to do with DeCSS. The only "irrational panic" here is on the part of the MPAA, and it's not likely to lead to imminent death or injury.
  • IIRC, the injunctions against various parties in the DeCSS cases were to prevent the distribution and posting of the source code on their respective web sites - since source code is now regarded as speech and is now protected by the same rights [until a higher precedent comes along], this case appears to kill stone dead such injunctions.

    IANAL. :-).
  • You should be using extrans mode - I made this mistake repeatedly some time ago.

  • I'll say it's not a victory. I quote the line:

    "the advancement of truth, science, morality, and arts"

    What...truth? Since when did it have to be true, so long as it is our opinion?


    You're misinterpreting: Allowing free speech (of any kind) serves the advancement of truth, not that the speech itself has to be true; just look at satire: it's not true per se, but it serves the advancement of truth.

    Chris
  • The obvious thing that comes out now is people discussing how this affects DeCSS.

    Think of it this way.

    If the DeCSS guys, instead of publishing DeCSS software, had simply written a technical essay about their reverse engineering efforts and how dvd encryption worked, including some keys... what would happen? Would they be sued under DMCA? Certainly not with as much zeal as they are now... and not withe the same clauses.

    Attacking them for writing a doucment would be very taboo... perhaps they could be sued if they obtained the information illegally... but....

    if they write software, and distribute it, there is a clear 'product' that is used to defeat a copy protection mechanism. That IS what it does (or at least, according to THEM... we all know that it's not really copy protection. Then again... could you or I copy dvd's with our measly hardware without it? ;)

    Now.. this line between a written essay and the software that implements the discussion of that essay is blurred. The source code IS now speech, just like the essay woudl be (until a higher court decides otherwise)

    They also make an analogy that I liked.

    Musicians can communicate with sheet music. Indeed, this is a technical, logical symbolic series of instructions to musicians. To normal people, i'ts gobbledygook, but to a musician, it's language, pure and simple.

    To a programmer, C is a langauge, not a bunch of machine-readable gobbldygook. The easiest way for a programmer to describe to another programmer something like how his new found decryption system works is to show code. Writing a textual description would not be as effective a communication means. Therefore, it's speech. Just as a composer's sheet music is protected speech.

  • Just because speech is protected does not mean you are not responsible for what you say.
    Perhaps they cannot stop DeCSS from spreading around the net, not unless some major national security issues are at stake, but they certainlyc oudl try to prosecute those who illegally obtainedthe information they described in their 'speech' (if it was, indeed, illegal, which of course, it isn't)
  • Don't abuse the 'fair use'. There isn't a 'fair use' clause as an exception to every law.

    In copyright, fair use deals with what is a 'fair' use of a copyrighted work.

    Now.. realize that the DeCSS caseis not directly a copyright case, but a DMCA cas, whereby the tools who's primary purpose is to circumvent a copy control mechanism are *illegal*.
    So. Source, describing the method by which this can be done may be protected speech, but actual compiled code to do it may not be.

    Here's why DMCA is so fucked up.
    Although it falls under 'fair use' for you to copy your DVD, copying that DVD (which you are allowed) requires you to circumvent a copy control mechanism, which requires the useof an ILLEGAL tool, and is an ILLEGAL act. So although having the copy is legal, the act of circumventing the copy protection to make that copy is illegal.
    That's messed up.
  • IANAL, but today's American society is SO litigous that I feel I must clearly state that IANAL lest someone take my well-worded advice as true legal advice and sues my ass for pretending to be a lawyer.

    IANAL.
  • It is plainly accepted that ignorance of the law is no excuse for breaking the law.

    It is logical, then, that it is every man's duty to understand and obey the law.

    Why the, in court, are we so often informed that we are not capable of understanding these laws, and that we require a professional lawyer to understand it for us? If the courts admit we cannot legally know the law, then how can they hold us responsible for breaking it?
  • unsigned char *a="\x98mWPS\x1\x87hSJH\0159F",b;main(){for(;b+=*a ++-80;putchar(b));}

    If anyone knows how to make a shorter "Hello World" in C that doesn't actually have the text "Hello World" in it, I'd love to see it :)

  • I would think it would more mean that talking about it, using the code, is legal. The program itself is still questionable, not for me, but under the Law.

    --
  • I agree that this is a bad idea. There is program I have to maintain that uses a homebrew string class. Everytime the program crashes, it's in the string class. I think anyone who writes their own string class deserves to be shot. The bounds checking that is necessary to do it correctly is hard to do without bugs. At least with a built in string class, the bugs have been flushed out by the multitudes of programmers who use the standard libraries.

    That program was originally written in 1997. I think String became pretty much standard in 1998. It's now taught as part of the language.
  • I agree. To state that DeCSS was created only to promote piracy would be like stating that the baseball bat was only created to physically assault people. Arguably, it _could_ be used maliciously and in all likelyhood will be to some degree. However, if the judicial system had ruled at some point that the baseball bat was illegal on the grounds that it could seriously injure people, the sport of baseball would never have gotten off the ground. Or hey, what if the government had decided at the arrival of the microcomputer that computers themselves were a vehicle for ceopyright infringement so should be banned? We certainly wouldn't be chatting it up on Slashdot. I can think of lots of examples. What if big chunks of hard stone were made illegal because they can be used to destroy peoples' windows thereby gaining access to their homes? I know I'm getting off the deepend here, but come on. Does the malicious potential outweigh the benefit?

  • ; Brute force /. fuck asm
    ; Copyright (c) 2000 Dylan Griffiths
    ; This program is released under the conditions of the GNU public licence v2
    ; Please see http://www.gnu.org/copyleft/gpl.html for more information.
    .MODEL small
    .STACK 200h
    .DATA
    Fuck DB 'Fuck the '
    FUCK_LEN EQU $ - Fuck
    Enemies DB ' NSA MSFTMPAARIAA'
    ENEMY_LEN EQU 4
    Endl DB '!',13,10
    ENDL_LEN EQU $ - Endl
    FUDGE DW ?
    .CODE
    main:
    ; Setup data segment
    mov ax, @data
    mov ds, ax
    mov si, 4 ; 4 x loop ;)
    prn_loop:
    mov ax, 4
    mul si
    mov [FUDGE], ax
    ; Get our "fudge factor" for offset in enemy string
    mov bx, 1
    mov ah, 40h
    mov cx, FUCK_LEN
    mov dx, OFFSET Fuck
    int 21h
    mov bx, 1
    mov ah, 40h
    mov cx, ENEMY_LEN
    mov di, Offset Enemies
    add di, FUDGE
    mov FUDGE, di
    ; Kludge around x86 lack of general registers. Gets proper offset.
    ; There *is* a better way to do this, but this way is fun.
    mov dx, [FUDGE]
    int 21h
    mov bx, 1
    mov ah, 40h
    mov cx, ENDL_LEN
    mov dx, OFFSET Endl
    int 21h

    dec si ; One less bottle of beer on the wall
    jnz prn_loop

    ; End
    mov ah, 4ch
    int 21h
    END main
    ; Compiles fine with TASM 5 (tasm fuck, tlink fuck, fuck)
    ; Now I know why basic was written,
    ; this took me an hour!

    ---
  • The idea that source code is free speech has always been obvious to me. Think about it. I can goto Amazon.com (if we're not boycotting them) and order books on how to build and atomic bomb or emp gun or assault rifle, how to break into computers and wreak havoc, and many other worse things I'm sure.... all of these have been very explicitly labelled FREE SPEECH. Countless trials uphold this statement... And surely "malicious" source code is not worse than any of these in its worst form. So if you needed to find a legal way of justifying why source code should have first amendment rights, look no further.... "Surely your honor, this book," lawyer holds a copy of _The Anarchy Cookbook_ (yes it exists in print form), "is much more dangerous than this.", lawyer holds up floppy disk with the RTM worm source code.

    People just don't understand that a clever hack, even a malicious one sometimes, is art, and cannot be suppressed. (Screw you, Guiliani!!!)


    Kspett

  • DeCSS code is legal now!
    Hooray....


    Kspett
  • The idea that source code is free speech has always been obvious to me. Think about it. I can goto Amazon.com (if we're not boycotting them) and order books on how to build and atomic bomb or emp gun or assault rifle, how to break into computers and wreak havoc, and many other worse things I'm sure.... all of these have been very explicitly labelled FREE SPEECH. Countless trials uphold this statement... And surely "malicious" source code is not worse than any of these in its worst form. So if you needed to find a legal way of justifying why source code should have first amendment rights, llok no further.... "Surely your honor, this book," lawyer holds a copy of _The Anarchy Cookbook_ (yes it exists in print form), "is much more dangerous than this.", lawyer holds up floppy disk with the RTM worm source code.

    People just don't understand that a clever hack, even a malicious one sometimes, is art, and cannot be suppressed. (Screw you, Guiliani!!!)


    Kspett

  • Some of [us] can write and have written programs directly in machine code, by toggling switches, or punching in hex, etc..

    The end result is that the "source code" is no different that the executable machine code. Why shouldn't that also be protected speech?

    I have to write in a high-level language to have protected speech?


    Even if you have the capacity to enter the bytes through a hex editor, ALT-#-#-#, use punch cards, use toggle switches, or whistle a stream of bits into a 300 baud modem it should still be protected as speech. I think the resulting collection of bits (which I referred to as binaries) should be protected as well. My point, though, was that protecting your chosen method of expressing your ideas, and keeping them available to others if you so choose, is more important than protecting the resulting executable string of bits. The resulting string of bits should be protected as well. But, as I mentioned earlier, that's another battle.

    numb
  • "Patents cover machines and processes.
    Copyrights cover particular expressions."

    Obviously, we haven't solved the issue of particular expressions that implement a process (code).

    The existing laws will not solve the issue. There is need for constitutional clarification as to the nature of code.
  • Code as speech should be obvious. Code as art, somewhat less so, but some of us experience a similar sense of awe when presented with a fine piece of coding. It allows us to see the mind and genius of the programmer just as the Mona Lisa or Beethoven's fifth show the genius of their creators.

    Of course, the code I've inherited at many of my jobs has been kitch...

  • Don't get me wrong, I agree with you. But, currently, the law doesn't (at least in the US - and that's what I worry about, being a US citizen) and that's the real problem here. Hopefully it will change soon and I'll be able to get a DVD player. Oh, well...
  • Thus, while the Federal 6th Circuit Court of Appeals may have ruled that source code is protected speech, that ruling does not change the rules in an area outside that court's jurisdiction.

    So in other words, your whole DeCSS attention-mongering post is crap, as others have already pointed out.

    If you're curious about the layout of the U.S. Circuit Courts you can go here:

    http://www.ll.georgetown.edu/Fed-Ct/ [georgetown.edu]

    Best regards,

    SEAL

  • Agreed.
    However, the law is one thing and the *text* of it is another. Just like a programs function and the souce code are two different things.

    Lawyers and judges are experts in translating the desired *function* of a law into law text and vice versa. Computer geeks are experts in translating the desired function of a computer program into source code (and again vv)

    The subject before the law as well as the user of a program must always have the right to know the full *function* of the law/program. Unfortunately it often takes an expert to figure this out.

    In juridics as well as in computer science, an amateur savant might prefer to express his opinions about the desired function in code/formal law speek since it is easier. However, only a proffessional (or a fool) claims responsibility for his work.

  • Likewise, you can send all your friends the source code for your latest Internet worm, but if they compile and run it, they've crossed the line between communicating an idea and actually carrying it out.

    Reading the book (compiling source code) and building the bomb (runing the program) Detonating it (using it to crack the DVD encryption)

    Sounds like pretty much the same thing to me.

    Er, I really don't think so. Even if the Anarchist Cookbook supposedly uses "common household items" those items are not part of the book. The book is instructions only. AFAIK however, the code is the instructions is the ingredients is the device. I don't see it as being that easy to claim that it is just instructions like the directions on how to biuld a bomb. It seems more like you are sending your friend a fully functional suitcase bomb with a note explaining how to press the buttons to start the timer - then claiming that it is merely a "very detailed explaination of how to build a bomb with all components painstakingly represented" that he "builds" by pressing the buttons.

    Now I can think of some people who might need such a detailed "representation" of a bomb, but no one would call it instructions instead of the real thing. And I'm not claiming that source code could be the moral equivelent of a bomb. But I do think that it is essentially intellectually dishonest to claim that code is "just instructions, just like the Anarchist Cookbook." It occupies a different position than simple instructions or simple speach. What that means can be argued at length, but the difference will still be there.

    -Kahuna Burger

  • Actually, the USA tried to do that with Viêt-Nàm 35 years ago...

    The USA is a nation, not an individual. There are precendents going back to the beginning of recorded history implicitly granting nations the "right" to act like violent, psychotic children, prey on the weak, and attack others just to save face. Not that this is a good thing, but that's just how it is.
    --

  • I can goto Amazon.com (if we're not boycotting them) and order books on how to build and atomic bomb or emp gun or assault rifle, how to break into computers and wreak havoc, and many other worse things I'm sure.... all of these have been very explicitly labelled FREE SPEECH. Countless trials uphold this statement... And surely "malicious" source code is not worse than any of these in its worst form.

    (Note: IANAL)

    This may be so, but there's a difference between expression of an idea, and the implementation of that idea.

    You can write books about how to make bombs, kill people, or turn small nations into smoking holes in the ground, but you can't actually do those things!

    Likewise, you can send all your friends the source code for your latest Internet worm, but if they compile and run it, they've crossed the line between communicating an idea and actually carrying it out.

    That's where the fuzzy gray area of "speech with functional significance" comes in...
    --

  • Evolution of a programmer High School/Jr.High
    ==================
    10 PRINT "HELLO WORLD"
    20 END


    First year University
    ====================
    program Hello(input, output)
    begin
    writeln(Hello World)
    end.


    Senior year University
    =====================
    (defun hello
    (print
    (cons Hello (list World))))


    New professional
    ===============
    #include
    void main(void)
    {
    char *message[] = {"Hello ", "World"};
    int i;

    for(i = 0; i printf("%s", message[i]);
    printf("\n");
    }


    Seasoned professional
    ====================
    #include
    #include

    class string
    {
    private:
    int size;
    char *ptr;

    public:
    string() : size(0), ptr(new char(\0)) {}

    string(const string &s) : size(s.size)
    {
    ptr = new char[size + 1];
    strcpy(ptr, s.ptr);
    }

    ~string()
    {
    delete [] ptr;
    }

    friend ostream &operator string &operator=(const char *);
    };

    ostream &operator {
    return(stream }

    string &string::operator=(const char *chrs)
    {
    if (this != &chrs)
    {
    delete [] ptr;
    size = strlen(chrs);
    ptr = new char[size + 1];
    strcpy(ptr, chrs);
    }
    return(*this);
    }

    int main()
    {
    string str;

    str = "Hello World";
    cout
    return(0);
    }


    Master Programmer
    ================
    [
    uuid(2573F8F4-CFEE-101A-9A9F-00AA00342820)
    ]
    library LHello
    {
    // bring in the master library
    importlib("actimp.tlb");
    importlib("actexp.tlb");

    // bring in my interfaces
    #include "pshlo.idl"

    [
    uuid(2573F8F5-CFEE-101A-9A9F-00AA00342820)
    ]
    cotype THello
    {
    interface IHello;
    interface IPersistFile;
    };
    };

    [
    exe,
    uuid(2573F890-CFEE-101A-9A9F-00AA00342820)
    ]
    module CHelloLib
    {
    // some code related header files
    importheader();
    importheader();
    importheader();
    importheader("pshlo.h");
    importheader("shlo.hxx");
    importheader("mycls.hxx");

    // needed typelibs
    importlib("actimp.tlb");
    importlib("actexp.tlb");
    importlib("thlo.tlb");

    [
    uuid(2573F891-CFEE-101A-9A9F-00AA00342820),
    aggregatable
    ]
    coclass CHello
    {
    cotype THello;
    };
    };

    #include "ipfix.hxx"

    extern HANDLE hEvent;

    class CHello : public CHelloBase
    {
    public:
    IPFIX(CLSID_CHello);

    CHello(IUnknown *pUnk);
    ~CHello();

    HRESULT __stdcall PrintSz(LPWSTR pwszString);

    private:
    static int cObjRef;
    };

    #include
    #include
    #include
    #include
    #include "thlo.h"
    #include "pshlo.h"
    #include "shlo.hxx"
    #include "mycls.hxx"

    int CHello::cObjRef = 0;

    CHello::CHello(IUnknown *pUnk) : CHelloBase(pUnk)
    {
    cObjRef++;
    return;
    }

    HRESULT __stdcall CHello::PrintSz(LPWSTR pwszString)
    {
    printf("%ws\n", pwszString);
    return(ResultFromScode(S_OK));
    }

    CHello::~CHello(void)
    {
    // when the object count goes to zero, stop the server
    cObjRef--;
    if( cObjRef == 0 )
    PulseEvent(hEvent);

    return;
    }

    #include
    #include
    #include "pshlo.h"
    #include "shlo.hxx"
    #include "mycls.hxx"

    HANDLE hEvent;

    int _cdecl main(int argc, char * argv[])
    {
    ULONG ulRef;
    DWORD dwRegistration;
    CHelloCF *pCF = new CHelloCF();

    hEvent = CreateEvent(NULL, FALSE, FALSE, NULL);

    // Initialize the OLE libraries
    CoInitializeEx(NULL, COINIT_MULTITHREADED);

    CoRegisterClassObject(CLSID_CHello, pCF, CLSCTX_LOCAL_SERVER,
    REGCLS_MULTIPLEUSE, &dwRegistration);

    // wait on an event to stop
    WaitForSingleObject(hEvent, INFINITE);

    // revoke and release the class object
    CoRevokeClassObject(dwRegistration);
    ulRef = pCF->Release();

    // Tell OLE we are going away.
    CoUninitialize();

    return(0); }

    extern CLSID CLSID_CHello;
    extern UUID LIBID_CHelloLib;

    CLSID CLSID_CHello = { /* 2573F891-CFEE-101A-9A9F-00AA00342820 */
    0x2573F891,
    0xCFEE,
    0x101A,
    { 0x9A, 0x9F, 0x00, 0xAA, 0x00, 0x34, 0x28, 0x20 }
    };

    UUID LIBID_CHelloLib = { /* 2573F890-CFEE-101A-9A9F-00AA00342820
    */
    0x2573F890,
    0xCFEE,
    0x101A,
    { 0x9A, 0x9F, 0x00, 0xAA, 0x00, 0x34, 0x28, 0x20 }
    };

    #include
    #include
    #include
    #include
    #include
    #include "pshlo.h"
    #include "shlo.hxx"
    #include "clsid.h"

    int _cdecl main(
    int arg {
    fprintf(stderr, "Object path must be specified\n");
    return(1);
    }

    // get print string
    if(argc > 2)
    mbstowcs(wcsT, argv[2], strlen(argv[2]) + 1);
    else
    wcscpy(wcsT, L"Hello World");

    printf("Linking to object %ws\n", wcsPath);
    printf("Text String %ws\n", wcsT);

    // Initialize the OLE libraries
    hRslt = CoInitializeEx(NULL, COINIT_MULTITHREADED);

    if(SUCCEEDED(hRslt)) {

    hRslt = CreateFileMoniker(wcsPath, &pmk);
    if(SUCCEEDED(hRslt))
    hRslt = BindMoniker(pmk, 0, IID_IHello, (void **)&pHello);

    if(SUCCEEDED(hRslt)) {

    // print a string out
    pHello->PrintSz(wcsT);

    Sleep(2000);
    ulCnt = pHello->Release();
    }
    else
    printf("Failure to connect, status: %lx", hRslt);

    // Tell OLE we are going away.
    CoUninitialize();
    }

    return(0);
    }


    Apprentice Hacker
    ================
    #!/usr/local/bin/perl
    $msg="Hello, world.\n";
    if ($#ARGV >= 0) {
    while(defined($arg=shift(@ARGV))) {
    $outfilename = $arg;
    open(FILE, ">" . $outfilename) || die "Cant write $arg:
    $!\n";
    print (FILE $msg);
    close(FILE) || die "Cant close $arg: $!\n";
    }
    } else {
    print ($msg);
    }
    1;


    Experienced Hacker
    =================
    #include
    #define S "Hello, World\n"
    main(){exit(printf(S) == strlen(S) ? 0 : 1);}


    Seasoned Hacker
    ==============
    % cc -o a.out ~/src/misc/hw/hw.c
    % a.out


    Guru Hacker
    ==========
    % cat
    Hello, world.
    ^D


    New Manager
    ==========
    10 PRINT "HELLO WORLD"
    20 END


    Middle Manager
    =============
    mail -s "Hello, world." bob@b12
    Bob, could you please write me a program that prints
    "Hello,world."?
    I need it by tomorrow.
    ^D


    Senior Manager
    =============
    % zmail jim
    I need a "Hello, world." program by this afternoon.


    Chief Executive
    ==============
    % letter
    letter: Command not found.
    % mail
    To: ^X ^F ^C
    % help mail
    help: Command not found.
    % damn!
    !: Event unrecognized
    % logout

  • Law does have some things in common with software engineering.

    It is supposed to be logical. Though it's not. You don't have a CPU making the final determination, but you have human judges making the determination.

    In software, if you don't like the universe, you redefine it. You can't do that with the law. You can't re-init (or redefine) classes or variables in the law. You almost always have to consider stare decisis. Unless yoe get the legislator to rewrite the rules for you (and sometimes it takes payoffs).

  • I read it and it is a fairly good piece.

    It misses two things: 1. The DMCA. 2. Composit work copyrights. Since the DMCA is new, there won't be much caselaw on it yet What counts in caselaw (usually) is what occurs at the appeal court level, not the trial court level. Though there is some exception. Website urls are not copyrightable in themselfs. What may be, is the composition of this list. I have read some earlier cases, which look at how much thought and analysis when towards the composition of the list. This analysis ruled that phone books and (the ProPhone CDs) were not copyrightable(but clickwrap won it for them). Then how much work was put in for the compilation (Motorolla v. NBA I think).

    With the DMCA, there will be much litigation and abuse. It will be amended soon, if we fight!

  • Isn't this what was ruled in the 9th circuit regarding PGP?

    It still has to be litigated with DeCSS and CPHack and such. But this would take money going up the big companies.

  • Lets see:
    • I take time to get medical treatment for an RSI.
    • I am fired for taking the time to get treatment that is successful.
    • They pay a judgment, but continue with a countersuit of libel.
    • They dismiss this countersuit, when a judge asks what is libelous.
    Do you assert that Mattel's actions with regards to CPHack are not abusive? Do you assert that threatening some kid who posts Barbie jokes [nmt.edu] is not abusive?

    A personal attack is a personal attack. Just because you are too much of a coward to identify yourself does not make it less personal. If I mug you does it make it any less personal, if I wear a mask?

  • Maybe this person felt that
    The "feeling" doesn't merit enough attention for us to use our real account, but the "feeling" is, nonetheless, quite true. You keep mentioning
    cocksucker quite a bit. Is that the result of projection or your job title?

  • Hey, I want 50% off on my free advice!

  • Did you ever read the site?

    Do you know why the site is up?

    Did you ever consider that I put the site up to:

    • Warn people about RSIs
    • Warn people the dangers of working through the pain
    • Inform people of some of their rights under the law
    • Warn companies (or managers) that RSIs are real
    • Warn companies what might happen if they ignore the rights of their employees
    • Show that when you stand up to a bully you can win

    I never said that an AC statement that is true is not true. What I am saying is that the opinion of an AC has less weight than someone who will take credit (or debit) for their opnion. That a person responds with name calling is given less weight. And a person who just calls names as an AC probably has a lead laced water supply, but is smart enough to realize it.

    Isn't this getting a little off topic?

  • The free legal advice you get on Slashdot is worth every cent you pay for it.

  • Do it yourself and save.
  • by Uruk ( 4907 ) on Tuesday April 04, 2000 @05:50PM (#1150987)
    Right on brother.

    I think I'm supposed to be a good citizen of slashdot and denounce AC posts that don't toe the slashdot party line, but the more I read slashdot, the more I find myself only reading the troll posts (to see what new stuff they can come up with :) and ignoring the rest of the karma whoring fluff.

    Think about it! When was the last time that you saw a high-rated comment that contained an opinion about free software or linux that was shocking or new? Now on the other hand, let's take a look at the trolls. They've given us all kinds of innovations - Natalie Portman, Grits, the flood-posting, OOG the caveman, nickname cloning, smargles, and all kinds of other things. Oh, and reading the flames full of righteous indignation is sometimes just too funny.

    Of course I think I used to be someone who took slashdot seriously, but I think that stopped at about the time when it was sold.

  • by mcc ( 14761 ) <amcclure@purdue.edu> on Tuesday April 04, 2000 @05:05PM (#1150988) Homepage
    so if C/C++ could be considered analog to abstract art or jazz music, with a deeper communicative meaning which is not immediately obvious but which holds extremely deep meaning to one who is familiar with it..
    then i guess INTERCAL [tuxedo.org] would be that woman who covered herself in chocolate naked, masturbated using a crucifix, and got her National Endowment for the Arts funding revoked..?

    at any rate this is probably the most important legal decision that will be made in the next decade and i shouldn't be making jokes about it..
    the ruling pertains to encryption, but anyone interested in emulators, portscanners, mp3 distribution programs, programs to break/decrypt copy/playback/usage protection in commercial software, hacking tools, things that haven't been thought of yet, etc-- or anyone who would like to see how one works, or at least anyone who thinks that it should be legal to create such tools even if usage of the tools would in most cases be illegal-- should rejoice. This is what we've been waiting for a court to say for years.

    I'd like to hope that we'll see a lot less now of corporations attempting to suppress information in source code form about things they don't want done.. but, of course, most such cases against emulators or programs such as cphack or decss were pretty damn shaky anyway, and were initiated not to be won, but to bankrupt the defendant via legal bills. So the fact that the cases are now even _shakier_ because the source code has First Amendment rights shouldn't cause a huge problem.

    On the bright side, this should encourage more emulator makers to go open source :)

    -mcc-baka
    http://drowed.cx/decss/
  • by Sloppy ( 14984 ) on Tuesday April 04, 2000 @06:26PM (#1150989) Homepage Journal

    IMHO (and IANAL :-) technology can become arbitrarily complexicated, so it really is possible for parts of it to transcend the understanding of the common man, unless he takes the time to study it in detail. OTOH, if human laws ever transcend the common man's understanding, then the law is defective. The very needs and purpose of law requires an upper bound on how hard it is to understand.

    Law should be no more complex than ethics (or at least within a constant factor of complexity). I'm not suggesting that law has actually stayed within those bounds. But ideally, it should. It is evil for any law to exist that I am expected to obey, but not able to understand without specialization.

    I think it is a good thing that we peons discuss law -- and try our best to sound authoritative about it. It sends a message (though I doubt that it is heard) that it is our law. And remember that we are all the source of the law's power. If a lawyer or judge ever talks down to me on the topic of law, I will consider that to be arrogant. It's arrogant, because it assumes that law is a black art and the knowledge is limited to the elite.

    That said, though, I do in fact appeciate seeing lawyers post on Slashdot. My favorite Slashdot poster happens to be one of them.


    ---
  • by KFury ( 19522 ) on Tuesday April 04, 2000 @05:06PM (#1150990) Homepage
    class Soapbox {

    public String[] enemy;

    public Soapbox() {
    enemy = new String['MPAA','RIAA','Microsoft','NSA'];

    public static void Main() {
    for (int i=0; i<enemy.length; i++) {
    System.out.println("Fuck the evil " + enemy[i] + "!");
    }
    }

    }


    Kevin Fox
  • by adrien ( 26080 ) on Tuesday April 04, 2000 @10:20PM (#1150991) Homepage

    IANAL

    from the original doc (Factual Background section):
    "Although it found that four programs were subject to the Regulations, the Export Administration found that the first chapter of Junger's textbook, Computers and the Law, was an allowable unlicensed export. Though deciding that the printed book chapter containing encryption code could be exported, the Export Administration stated that export of the book in electronic form would require a license if the text contained 5D002 software."

    Despite all the bla bla about sour code being expressive and speech and whatnot bla bla (which i agree with...) it seems an important logical part of the argument is that (if i understand correctly) the same material was legally "exported" in the form of a book, whereas the online version was met with restrictions.

    So it seems that this ruling might be more of a 'the internet is not to be subject to stupid restrictions that would not be placed on, say, books' then a 'code is free speech' type response.

    dunno, anyone got any opinions on this? is there a lawyer in the house?

    /IANAL

    adrien


    adrien cater
    boring.ch [boring.ch]
  • by hey! ( 33014 ) on Tuesday April 04, 2000 @05:03PM (#1150992) Homepage Journal
    Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.


    Another judge with a clue.

    Maybe there ought to be some kind of prize to recognize jurists who demonstrate real insight into computer technology.

  • by MicroBerto ( 91055 ) on Tuesday April 04, 2000 @05:49PM (#1150993)
    Being a lawyer, i must disagree:

    Although there are still a few more proceedings to go through, this is good.

    First off, its a step in the right direction. Open source wins once again.

    Second off, although the court hearing was done within the barriers of the constitution, the opposing sides of case have been known to dissent in as well.

    Third and firstmost, you are correct about the TOOL part, yet incorrect about compiling and using.

    Fourth and thirdmost, the reason that you're incorrect about the compilation and using is because it will be legal to execute the written code if it is a legal amount of code in the firstplace, meaning that it does not make its writer liable for anything, or cause a national security, or harm anyone in a significant/reasonable way.

    Fifth, this goes along well with the possibility of having Microsoft having to release some of its source code. Now the courts can have a writ of mandamis that it be handed over now that the actuall open source IS legal. Before this, all of that banter would have been ILLEGAL!

    Sixth, my fifth reason leads me into my next part: Open source dominates because there is nothing more to hand over. DRI may be a problem, however.

    Seventh, you can't triple stamp a double stamp, like in "Dumb and Dumber"

    Mike Roberto (roberto@soul.apk.net [mailto]) - AOL IM: MicroBerto

  • by Jerf ( 17166 ) on Tuesday April 04, 2000 @05:56PM (#1150994) Journal
    Patents cover machines and processes.

    Copyrights cover particular expressions.

    The two domains do not overlap.

    Therefore, if code is protected for First Amendment reasons, then patents on code cannot be enforced; code is expression, not a machine. Copyright can protect a particular expression, but cannot prevent somebody from using something. (In fact, a little-known part of copyright law is that if you independently come up with something that is copyrighted by something else, you will both have a copyright. As long as you don't look at someone's implementation of something, you cannot be prosecuted (successfully) for copyright infringement.)

    Contradiction: Under the conceptions of current law, there should not be anything protectable by both patent law and copyright law; however, the judge in this opinion is implying that code is an expression, thus under copyright law, and the Patent office is quite clearly granting patents based on things (like RSA) that are nothing but code.

    Something has to break. This doesn't prove anything, except that current law is incapable of handling "code"... but this proves that quite handily IMHO.

  • by Black Parrot ( 19622 ) on Tuesday April 04, 2000 @06:24PM (#1150995)
    > However, this does very little, if anything, for DeCSS.

    True. At least not directly. What it does do is establish that one of our most fundamental rights applies on the internet. Without that, all the other battles are lost before they start.

    --
  • by Wah ( 30840 ) on Tuesday April 04, 2000 @05:51PM (#1150996) Homepage Journal
    Somebody, please, either put the final crushing blow to my silly thought that slashdot isn't just full of arrogant posturing fools, or tell me what it is about unsolicited and totally uninformed legal advice that gives everybody here such a stiffy.

    Wow, I thought this was just a conversation about a legal ruling. I didn't realize people came to /. for legal advice.

    Welcome to BenchDot:

    News for Lawyers, Stuff that Sues


    (arrogant posturing fool #30840, reporting for duty, SIR!)
    --
  • by G27 Radio ( 78394 ) on Tuesday April 04, 2000 @05:52PM (#1150997)
    I agree. But the important thing is that the source would be legal under this interpretation. It bothers me much less that the compiled version could still be illegal...No, not because I'm a Linux zealot used to compiling code, but because SOURCE CODE IS EXPRESSION.

    Even a mediocre programmer can see the beauty of a well written program, and gain enlightenment through it. This judge does seem to understand that aspect of it.

    While the legality of using the resulting compilation may still be in doubt to some, at least the judge understands the most important part--that source is expression. Binaries may be just a tool easily constructed by the instructions the source code provides and that leaves the use of DeCSS in question--but that's another battle.

    If the DeCSS source is illegal then we can not use it to build the tools we need to use the new wave of physically distributed media (DVD) to it's fullest potential. If the binary of DeCSS is illegal while the source is not then it only makes it slightly harder to produce those tools--it will just mean that we have to compile it into a bigger program which will play it or analyze it or whatever. I realize that this hinders the modularity required to make DeCSS utilize DVD in the most efficient manner but at least it doesn't make it impossible. Like I said, that's another battle.

    numb
  • by kevin805 ( 84623 ) on Tuesday April 04, 2000 @07:17PM (#1150998) Homepage
    I live in the society determined by US law. I have an interest in whether that law is reasonable and serves me, or whether that law is unreasonable and serves some special interest at the expense of private citizens. Democracy is based on the idea that the views of some idiot on the street are relevant to running government.

    So, I comment on law, I argue about it. I'm not necessarily correct as to the "who'll win the superbowl" type arguing about what the outcome of a court case will be, but I am entitled to my opinion as to what the outcome of a court case should be. And since this is a democracy, it's in my interests to spread my opinions, in the hope that someone else will see how reasonable they are, and keep them in mind next election day.

    --Kevin
  • by randombit ( 87792 ) on Tuesday April 04, 2000 @05:10PM (#1150999) Homepage
    Seems like people are getting excited for the wrong reasons (most of the posts at this point seem to be "Horay! DeCSS is legal now!").

    Note that I haven't read the full ruling. But from the except given, it seems the judge is saying that computer source code (including cryptographic source code) is protected by free speech (and thus crypto export restrictions in the US are unconstitutional). Other judges have said the same thing, and I say the more the better. For the most part, you can export any kind of crypto you want now anyway, but I'd prefer that there were no restrictions of any sort, which this helps pave the way for.

    However, this does very little, if anything, for DeCSS. First off, there are the issues of reverse engineering, trade secrets, etc (these points are still wrong, but they were wrong with the RIAA and MPAA brought them up in the fist place so they're probably not going away now). And anyway AFACT the ruling has nothing to do with these issues. Secondly, there is the little matter of... da-dum... DMCA. I'm pretty sure it makes DeCSS illegal, and unless/until it is shown to be unconstitutional and thrown out, DeCSS will still be an "illegal piracy tool" or something stupid like that, even though source code in general is protected (this is similiar to: photographs are protected by the 1st ammendment, but photos of nude 7 year old girls are illegal).

    IANAL and any corrections/clarifications would be appreciated.
  • by Louis_Wu ( 137951 ) <chris.cantrall@gmail.com> on Tuesday April 04, 2000 @05:34PM (#1151000) Journal
    Maybe, but it can still be regulated.
    The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of
    permitted government regulation.
    Emphasis added.

    Besides, the 6th Circuit Court (not the Supreme Court, we still have to see what they will say; it ain't over yet, flyboy) said that code is FREE AS IN SPEECH, NOT Free As In Beer. The DMCA might still be interpreted as making the code property (you can exercise free speech in an interview with the local TeleVision station, but they own the tape of the interview). Don't ask me how that might happen, I thought that DMCA-type laws would be thrown out by the second or third judge.

    So now the First Amendment applies. But, the first amendment doesn't give us carte blanche to just say whatever we want, there are certain limitations. (Too many limitations, IMO, but I just want to know what this means in practical terms for DMCA, UCITA, and MPAA & RIAA, et al.) I cannot say untrue things about a public figure if I know them to be untrue, that is libelous (slander?). I can't yell "Fire" in a theater, but I can yell it in my home. There are many common-sense limitations to the First Amendment, and many silly/stupid/~evil limitations too, so we must not take this as a signal to "Copy, Distribute, and Be Merry." It's a good win, but the war isn't over, and we cannot afford to look like outlaws or script kiddies or crackers or any other stereotype. If we look even remotely like a stereotype, those who don't know us will assume that the media and the government are right about us, and we will lose support.

    /Begin Rant

    And it's about time that non-tech-heads realized this basic truth: geeks and nerds comunicate in ways different from most of "mainstream society", and many of these methods are hard/impossible for a layman to understand. I'm graduating with my degree in Mechanical Engineering this year, and I speak 2 languages fluently: american English, and Math. Example: business types describe the Gini Coefficient (an economic measurement) as a ratio of areas involving two curves; I think of it as G = 1-(2*Integral[f(x),x,0,1)])/(x*h) and that tells me exactly what I need to know, with no ambiguities. Just because what I 'say' isn't in English (or German, or Russian, or American Sign Language), doesn't mean that it isn't 'speech'. The expression of an idea in Code or Math is very dependant upon the author (especialy for large and/or complicated matters). I've been moved more by Shakespeare than by 'speech' in Math, but it's close; I've seen some beautiful Math. It is much like marveling at a particularly ingenious hack; it is so elegant, so efficient, so novel that the experience is emotional.

    /End Rant

    Louis Wu


    Louis Wu

    Thinking is one of hardest types of work.

  • by norculf ( 146473 ) on Tuesday April 04, 2000 @04:58PM (#1151001) Journal
    #include
    /*
    Fuck the thought police
    Fuck Bill clinton
    Fuck the DMCA
    Fuck moderators
    */
    main()
    {
    printf("Have a nice day\n");
    return0;
    }

  • by Uruk ( 4907 ) on Tuesday April 04, 2000 @05:16PM (#1151002)
    This is not specific to you, Signal 11, since I don't know you, and because I'm guilty of what you're doing, but...

    Why is it, that practically everybody on slashdot (I've done it too) always puts 'IANAL' in their posts, ... and then proceeds to give legal advice or analysis? As far as I know, the real spirit of 'IANAL' is that since the person isn't a professional, their words should be taken with a grain of salt, and might even be total crap.

    So we get a situation where the reader has been fully warned that the post may be full of crap, yet still we read it? And the output of unsolicited legal advice on slashdot is not only used and condoned, but promoted through moderation?

    What I'm trying to get at is that many of the programmers on slashdot (if there are any left) are generally the type that really hate listening to a newbie spout off about technology and computing when the person has no idea of what they are talking about. (Case in point - I was outside the computer lab at my school the other day, and I heard somebody talking about XML capable talkback widgets - if that's not total bullshit I don't know what is). So where's the difference between the clueless newbie dropping buzzwords about a topic he doesn't understand and one of the slashdot elite dropping legalese and telling people how the MS appeal is *really* going to go, or what's *really* going to happen with DeCSS?

    Somebody, please, either put the final crushing blow to my silly thought that slashdot isn't just full of arrogant posturing fools, or tell me what it is about unsolicited and totally uninformed legal advice that gives everybody here such a stiffy.

  • by Signal 11 ( 7608 ) on Tuesday April 04, 2000 @04:50PM (#1151003)
    Before everyone shouts "wuzzah! DeCSS is free" I'd like to remind you the judge considered DeCSS a mechanism for piracy.. not a tool to promote interoperability.

    What this means is that while code is speech.. the compiled product is still a tool. If I quote you on something, that's fair use. How many people would like to explain that I just "quoted" half the windows source for, uhh, demonstrative purposes?

    Since the compiled product is a TOOL and not a vehicle for free speech, the judge can still keep DeCSS illegal. HOWEVER, I'd be willing to bet that distribution of the SOURCE is now legal.. but compiling it and using it is NOT.

    However, IANAL, I just play one on slashdot. ;)

  • BZZZZZZZZTT
    WRONG

    "Patents cover machines and processes.
    Copyrights cover particular expressions."


    A piece of source code is almost always an implementation of some process.

    "things (like RSA) that are nothing but code."

    Since when is RSA nothing but code? RSA is an encryption algorithm. The source code is an implementation of that algorithm (a.k.a. process). RSA can be described without a scrap of source code. It is a mathematical algorithm.
    -Matt
  • by ryanr ( 30917 ) <ryan@thievco.com> on Tuesday April 04, 2000 @07:25PM (#1151005) Homepage Journal
    Some of can write and have written programs directly in machine code, by toggling switches, or punching in hex, etc..

    The end result is that the "source code" is no different that the executable machine code. Why shouldn't that also be protected speech?

    I have to write in a high-level language to have protected speech?
  • by schon ( 31600 ) on Tuesday April 04, 2000 @06:18PM (#1151006)

    Actually it has quite a bit to do with DeCSS.

    One of the reasons that the MPAA received the preliminary injunction against 2600 was that the judge didn't consider source code to be expression.

    Since the final word now is that source code is a constitutionally protected form of expression, it's going to be easier for the DeCSS guys to fight the DMCA; the DMCA says that anything that circumvents copy control is illegal - but now the DeCSS guys can argue that this directly infringes on their First Amendment rights (because it makes their expression illegal.)

    Just because source code counts as free speech does not mean that any source code you publish is protected.

    This is true, but you miss the point that any source code you have rights to is protected.

    DeCSS was released under an open license, which grants anybody the right to copy and distribute it - so your analogy falls pretty flat; what if you do have the authors permission?

  • by AdrianG ( 57465 ) <adrian@nerds.org> on Tuesday April 04, 2000 @05:49PM (#1151007) Homepage
    All this decision does is clear up a single point of law. The district court issued a summary judgement stating that there was no need to consider the First Amendment claim, because it felt that the source code was too functional and not sufficiently expressive to warrent First Amendment protection.

    The appellate court corrected this misconception and instructed the lower court to consider the case again. The lower court could still consider the First Amendment claim and decide that the government's interrest is overriding, but before this ruling, the lower court didn't feel that it had to consider a First Amendment claim at all.

    This ruling is a step in the right direction, but it is far from a (correct IMO) ruling in Junger's favor. It does not make DeCSS legal, it does not shoot down the ridiculous ITAR/BXA restrictions, it does not war obsolete, etc..

    This ruling does, perhaps, cast a slightly better light on the position of the good guys in many of these encryption related cases. It is good news, but please, folks, get a grip!

    Adrian

    PS: IANAL
    PPS: I am not a witless idiot, either. 8-)
  • by jjsaul ( 125822 ) on Tuesday April 04, 2000 @04:56PM (#1151008)
    This case has simply been remanded for further proceedings. While you might like the idea that the court has declared that code can be speech, and that does have far-reaching ramifications, the critical issues have been returned to the lower court, which has been instructed in exactly how to rule for the government under current 1st amendment law:

    "We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether the exercise of presidential power in furtherance of national security interests should overrule the interests in allowing the free exchange of encryption source code."

    It is a very high standard - but the national security exception to the 1st amendment is used as an example of limits in every 1stA. case - usually referring to the unlawful publication of troop movements in wartime. The government need not change their argument to shove this puppy way up into the dark, sticky recesses of national security.
  • by gilroy ( 155262 ) on Tuesday April 04, 2000 @05:52PM (#1151009) Homepage Journal
    Quoth the poster:
    It is a very high standard - but the national security exception to the 1st amendment is used as an example of limits in every 1stA. case - usually referring to the unlawful publication of troop movements in wartime. The government need not change their argument to shove this puppy way up into the dark, sticky recesses of national security.
    But there's still a world of difference between "This is speech that can be regulated for national security" and "This isn't speech and can be regulated on a whim". It's not the end, it's not the beginning of the end ... but maybe it's the end of the beginning.

    I am continually more impressed with the intellegience of the federal judiciary. Out of all the Powers that Be, they seem to be way the most clued-in.

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